Citation Nr: 0937174
Decision Date: 09/30/09 Archive Date: 10/09/09
DOCKET NO. 08-06 927 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
the Commonwealth of Puerto Rico
THE ISSUES
1. Whether new and material evidence has been received to
reopen a claim of
entitlement to service connection for a respiratory disorder,
claimed as asthma.
2. Whether new and material evidence has been received to
reopen a claim of
entitlement to service connection for a bilateral ear
disorder, claimed as hearing loss.
3. Entitlement to service connection for a respiratory
disorder, claimed as asthma.
4. Entitlement to service connection for a bilateral ear
disorder, claimed as hearing loss.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
A. M. Clark, Associate Counsel
INTRODUCTION
The Veteran served on active duty from May 1951 to February
1954.
These matters come before the Board of Veterans' Appeals (BVA
or Board) from a November 2005 rating decision of the
Department of Veterans Affairs (VA), Regional Office (RO) in
San Juan, the Commonwealth of Puerto Rico.
The Veteran testified before a Decision Review Officer (DRO)
in June 2007. A transcript of the hearing is of record.
This appeal has been advanced on the Board's docket pursuant
to 38 C.F.R. § 20.900(c) (2009).
The issue of entitlement to service connection for a
respiratory disorder is addressed in the REMAND portion of
the decision below and is REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. The RO denied the Veteran's claims for respiratory and
bilateral ear disorders in May 1972, October 1982, and
September 1999.
2. The RO's September 1999 decision is the last final
denial for a respiratory and a bilateral ear disorder on any
basis.
3. The evidence added to the record since September 1999,
when viewed by itself or in the context of the entire record,
is neither cumulative or redundant and relates to an
unestablished fact necessary to substantiate the claims for a
respiratory disorder and a bilateral ear disorder.
4. A chronic bilateral ear disorder was not demonstrated
during service, or for many years thereafter; bilateral
hearing loss is unrelated to active service.
CONCLUSIONS OF LAW
1. The September 1999 rating decision, which denied his
claims to reopen entitlement to service connection for a
respiratory disorder and a bilateral ear disorder, is final.
38 U.S.C.A. § 7105 (West 2002), 38 C.F.R. §§ 3.160(d),
20.201, 20.302 (2009).
2. The evidence received subsequent to the September 1999 RO
decision is new and material and the criteria to reopen the
claims have been met. 38 U.S.C.A.
§§ 5103(a), 5103A, 5107(b), 5108 (West 2002 & Supp. 2009);
38 C.F.R. §§ 3.156, 3.159 (2009).
3. A bilateral ear disorder, claimed as hearing loss, was
not incurred in or aggravated by active service, nor may it
be presumed to have been so incurred. 38 U.S.C.A. §§ 1101,
1110, 1111, 1112, 1113, 5103(a), 5103A, 5107(b) (West 2002 &
Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309,
3.385 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Board has reviewed all of the evidence in the Veteran's
claims folder. Although the Board has an obligation to
provide reasons and bases supporting this decision, there is
no need to discuss, in detail, the extensive evidence of
record. Indeed, the Federal Circuit has held that the Board
must review the entire record, but does not have to discuss
each piece of evidence. Gonzales v. West, 218 F.3d 1378,
1380-81 (Fed. Cir. 2000). Therefore, the Board will
summarize the relevant evidence where appropriate, and the
analysis below will focus specifically on what the evidence
shows, or fails to show.
I. Claims to Reopen Based on New and Material Evidence
Unappealed rating decisions are final with the exception that
a claim may be reopened by submission of new and material
evidence. When a veteran seeks to reopen a claim based on
new evidence, VA must first determine whether the additional
evidence is "new" and "material."
Second, if VA determines that new and material evidence has
been added to the record, the claim is reopened and VA must
evaluate the merits of the Veteran's claim in light of all
the evidence, both new and old. Manio v. Derwinski, 1 Vet.
App. 140 (1991); Barnett v. Brown, 83 F.3d 1380, 1383 (Fed.
Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996).
When making determinations as to whether new and material
evidence has been presented, the RO must presume the
credibility of the evidence. Justus v. Principi, 3 Vet. App.
510 (1992). However, lay assertions of medical causation
cannot serve as the predicate to reopen a claim under § 5108.
See Moray v. Brown, 5 Vet. App. 211, 214 (1993).
VA regulation defines "new" as evidence not previously
submitted and "material" as evidence related to an
unestablished fact necessary to substantiate the claim. If
the evidence is new and material, the question is whether the
evidence raises a reasonable possibility of substantiating
the claim. See 38 C.F.R. § 3.156(a) (effective in August
2001). As he filed his claims in August 2005, this version
of 38 C.F.R. § 3.156(a) is applicable in this case.
Historically, the Veteran initially filed claims of
entitlement to service connection for respiratory and
bilateral ear disorders in February 1972. These claims were
denied in a May 1972 rating decision. At that time, it was
determined that his asthma had not been incurred in or
aggravated by service. Further, the RO determined that he
did not have an ear disorder shown by the evidence of record.
He did not appeal that decision and it became final.
He subsequently filed claims to reopen in September 1982.
These claims were denied in an October 1982 rating decision.
Subsequent claims to reopen in May 1999 were denied in a
September 1999 rating decision. The RO's September 1999
decision is the last final denial for respiratory and ear
disorders on any basis.
The Veteran once again filed to reopen his claims of
entitlement to service connection for respiratory and
bilateral ear disorders in August 2005. In November 2005,
the RO denied the claims on the basis that no new and
material evidence had been received. He appealed.
The evidence added to the record since the September 1999 RO
decision, includes VA outpatient treatment records and
private treatment records. The private treatment records
include a July 2006 statement from the Veteran's private
treating physician.
With respect to the respiratory disorder claim, the Board
finds that the July 2006 statement is sufficient to reopen
the claim. Indeed, this evidence was not previously before
the RO and is not cumulative or redundant of evidence
associated with the claims file at the time of the September
1999 decision.
Most significantly, the physician suggests that the Veteran's
asthma may be related to his service in Korea. Given the
physician's medical opinion, a reasonable possibility of
substantiating his claim is raised. Therefore, his
respiratory disorder claim will be reopened and remanded as
discussed in the Remand portion of this decision.
With respect to his claim for an ear disorder, of particular
significance to the Board is the fact that the VA treatment
records between September 2003 and May 2008, which were not
before the RO in September 1999 and are thus not cumulative
or redundant of evidence associated with the claims file at
that time, diagnosed the Veteran with a hearing loss
disorder.
As such, for the first time, he has been diagnosed with a
chronic hearing disorder. Given this diagnosis, a reasonable
possibility of substantiating the Veteran's claim for service
connection for a bilateral ear disorder has been raised.
Therefore, the Board also finds that the evidence is also
sufficient to reopen his previously denied claim for service
connection for a bilateral ear disorder.
II. Service Connection- Bilateral Ear Disorder
Under the relevant laws and regulations, service connection
may be granted for a disability resulting from disease or
injury incurred in or aggravated by active service. 38
U.S.C.A. § 1110 (West 2002). If a chronic disease is shown
in service, subsequent manifestations of the same chronic
disease at any later date, however remote, may be service
connected, unless clearly attributable to intercurrent
causes. 38 C.F.R. § 3.303(b) (2009). However, continuity of
symptoms is required where a condition in service is noted
but is not, in fact, chronic or where a diagnosis of
chronicity may be legitimately questioned. 38 C.F.R. §
3.303(b) (2009).
Further, service connection may also be granted for any
disease diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 U.S.C.A. § 1113(b) (West
2002); 38 C.F.R. § 3.303(d) (2009). The Board must determine
whether the evidence supports the claim or is in relative
equipoise, with the appellant prevailing in either case, or
whether the preponderance of the evidence is against the
claim, in which case, service connection must be denied.
Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
The Veteran is claiming entitlement to service connection for
bilateral ear disorder. As he has not made specific
allegations as to what disorder of the ears he is referring
to, the Board has broadly construed his claim to include a
claim for hearing loss. For VA purposes, hearing impairment
is considered a disability when the auditory threshold in any
of the frequencies 500, 1000, 2000, 3000, 4000 Hz is 40
decibels or greater; or when the auditory thresholds for at
least three of the frequencies 500, 1000, 2000, 3000, or 4000
Hz are 26 decibels or greater; or when speech recognition
scores using the Maryland CNC Test are less than 94 percent.
38 CFR § 3.385 (2009).
Initially, the Board finds that a hearing loss disability for
VA compensation purposes has been shown. Specifically, a
September 2003 VA outpatient treatment note revealed the
following pure tone thresholds, in decibels:
HERTZ
500
1000
2000
3000
4000
RIGHT
25
40
70
75
70
LEFT
30
70
70
70
70
The diagnosis was mild to profound sensorineural hearing loss
(SNHL) in his right ear, and mild to moderately severe SNHL
in his left ear. Moreover, recent treatment records indicate
that he wears hearing aids. The Board parenthetically notes
that although the medical records demonstrate that the
Veteran has a current bilateral hearing loss, the records do
not demonstrate any other disorder of the ears.
In considering in-service incurrence, the Board initially
notes that the service treatment records reveal that the
Veteran sought treatment for "ringing" in his ears in
September 1951. No further complaints were made regarding
his ears for the remaining 2 1/2 years of service. In fact,
the separation examination demonstrated 15 out of 15 scores
in both his right and left ears following audiological
testing. Further, the clinical evaluation of his ears was
normal. Additionally, in a Report of Medical History
completed at that time, he denied ever having had or
currently having any ear trouble.
The Board acknowledges that the Veteran sought treatment for
his ears on one occasion during service; however, based on
the fact that no further complaints were made for the
remaining 2 1/2 years of service, and his separation
examination was normal, there was no chronic hearing loss
shown in service.
Next, post-service evidence does not reflect symptomatology
associated with the Veteran's ears for many years after
service discharge. Specifically, although he claimed that he
had poor hearing at an April 1972 VA examination, the
examiner noted grossly normal speech and hearing. No
diagnosis was made with respect to his ears. In fact,
hearing loss was not diagnosed until September 2003, almost
50 years post-service.
In addition to the absence of documented post-service
symptoms associated with hearing loss for many years, the
evidence includes the Veteran's statements and sworn
testimony which appear to assert continuity of symptoms. The
Board acknowledges that lay evidence concerning continuity of
symptoms after service, if credible, is ultimately competent,
regardless of the lack of contemporaneous medical evidence.
Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).
In rendering a decision on appeal, the Board must analyze the
credibility and probative value of the evidence, account for
the evidence which it finds to be persuasive or unpersuasive,
and provide the reasons for its rejection of any material
evidence favorable to the claimant. See Gabrielson v. Brown,
7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet.
App. 49, 57 (1990).
Competency of evidence differs from weight and credibility.
The former is a legal concept determining whether testimony
may be heard and considered by the trier of fact, while the
latter is a factual determination going to the probative
value of the evidence to be made after the evidence has been
admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno
v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v.
Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may
affect the credibility of testimony, it does not affect
competency to testify").
In this case, the Veteran is competent to report symptoms
because this requires only personal knowledge as it comes to
him through his senses. Layno, 6 Vet. App. at 470. He has
indicated that he continued to experience symptoms relating
to his ears after he was discharged from the service.
In determining whether statements submitted by a veteran are
credible, the Board may consider internal consistency, facial
plausibility, and consistency with other evidence submitted
on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498
(1995). The Board is not required to accept an appellant's
uncorroborated account of his active service experiences.
Wood v. Derwinski, 1 Vet. App. 190 (1991).
In this case, the Board finds that the Veteran's reported
history of continued symptomatology since active service,
while competent, is nonetheless not credible. First, the
Board emphasizes the multi-year gap between discharge from
active duty service (1954) and initial reported symptoms
related to a hearing disorder in April 1972 (nearly a 20-year
gap). See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir.
2000) (lengthy period of absence of medical complaints for
condition can be considered as a factor in resolving claim);
see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991)
(affirming Board's denial of service connection where veteran
failed to account for lengthy time period between service and
initial symptoms of disability).
Furthermore, when a hearing disability was finally diagnosed
in September 2003, almost 50 years had passed since
separation from service. The Board has weighed the Veteran's
statements as to continuity of symptomatology and finds his
recollections as to symptoms experienced in the distant past,
made in connection with a claim for benefits, to be less
probative. Therefore, continuity has not here been
established, either through the competent evidence or through
his statements.
Next, service connection may be granted when the evidence
establishes a medical nexus between active duty service and
current complaints. In this case, the Board finds that the
weight of the competent evidence does not attribute the
Veteran's hearing loss to active duty, despite his
contentions to the contrary. Specifically, no medical
professional has established a relationship between his
current bilateral hearing loss and active duty.
The Board has also considered his statements and sworn
testimony asserting a nexus between his currently-diagnosed
disorder and active duty service. While the Board reiterates
that the Veteran is competent to report symptoms as they come
to him through his senses, hearing loss is not the type of
disorder that a lay person can provide competent evidence on
questions of etiology or diagnosis. See Robinson v.
Shinseki, 557 F.3d 1355 (2009).
Such competent evidence has been provided by the medical
personnel who have examined him during the current appeal and
by service records obtained and associated with the claims
file. Here, the Board attaches greater probative weight to
the clinical findings than to his statements. See Cartright,
2 Vet. App. at 25.
Further, the Board has considered whether presumptive service
connection for chronic disease is warranted. Under 38 C.F.R.
§ 3.309(a), other organic diseases of the nervous system, to
include sensorineural hearing loss, is regarded as a chronic
disease. However, in order for the presumption to operate,
such disease must become manifest to a degree of 10 percent
or more within 1 year from the date of separation from
service. See 38 C.F.R. § 3.307(a)(3).
As the evidence of record fails to establish any clinical
manifestations of sensorineural hearing loss within the
applicable time period, the criteria for presumptive service
connection on the basis of a chronic disease have not been
satisfied.
In light of the above discussion, the Board concludes that
the preponderance of the evidence is against the claim for
service connection and there is no doubt to be otherwise
resolved. As such, the appeal is denied.
Finally, as provided for by the Veterans Claims Assistance
Act of 2000 (VCAA), VA has a duty to notify and assist
claimants in substantiating a claim for VA benefits.
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002
& Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)
(2009).
Proper notice from VA must inform the claimant of any
information and medical or lay evidence not of record (1)
that is necessary to substantiate the claim; (2) that VA will
seek to provide; and (3) that the claimant is expected to
provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002).
This notice must be provided prior to an initial unfavorable
decision on a claim by the RO. Mayfield v. Nicholson, 444
F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet.
App. 112 (2004).
When VCAA notice is delinquent or erroneous, the "rule of
prejudicial error" applies. See 38 U.S.C.A. § 7261(b)(2).
In the event that a VA notice error occurs regarding the
information or evidence necessary to substantiate a claim, VA
bears the burden to show that the error was harmless.
However, the appellant bears the burden of showing harm when
not notified whether the necessary information or evidence is
expected to be obtained by VA or provided by the appellant.
See Shinseki v. Sanders, 556 U.S. ___ (2009).
In addition, the notice requirements of the VCAA apply to all
five elements of a service-connection claim, including: (1)
veteran status; (2) existence of a disability; (3) a
connection between the Veteran's service and the disability;
(4) degree of disability; and (5) effective date of the
disability. See Dingess/Hartman v. Nicholson, 19 Vet. App.
473 (2006). Further, this notice must include information
that a disability rating and an effective date for the award
of benefits will be assigned if service connection is
awarded. Id. at 486.
With respect to the claims to reopen, VA must both notify a
claimant of the evidence and information that is necessary to
reopen the claim and of the evidence and information that is
necessary to establish entitlement to the underlying claim
for the benefit that is being sought. Kent v. Nicholson, 20
Vet. App. 1 (2006).
To satisfy this requirement, VA is required to look at the
bases for the denial in the prior decision and to provide the
claimant with a notice letter that describes what evidence
would be necessary to substantiate those elements required to
establish service connection that were found insufficient in
the previous denial.
In this case, the Board is reopening the claims for both a
respiratory disorder and a bilateral ear disorder therefore
further notice under Kent is not needed. Accordingly,
assuming, without deciding, that any error was committed with
respect to either the duty to notify or the duty to assist,
such error was harmless and need not be further considered.
With respect to the remaining service connection claim for a
bilateral ear disorder, the VCAA duty to notify was satisfied
by way of a letter sent to the Veteran in August 2005 that
fully addressed all notice elements and was sent prior to the
initial RO decision in this matter. The letter informed him
of what evidence was required to substantiate the claim and
of his and VA's respective duties for obtaining evidence.
There is no allegation from the Veteran that he has any
evidence in his possession that is needed for full and fair
adjudication of the claim. Under these circumstances, the
Board finds that the notification requirements of the VCAA
have been satisfied as to both timing and content.
With respect to the Dingess requirements, in June 2009, the
RO provided the Veteran with notice of what type of
information and evidence was needed to establish a disability
rating, as well as notice of the type of evidence necessary
to establish an effective date. With that letter, the RO
effectively satisfied the remaining notice requirements with
respect to all issues on appeal.
Therefore, adequate notice was provided to the Veteran prior
to the transfer and certification of his case to the Board
and complied with the requirements of 38 U.S.C.A.. § 5103(a)
and 38 C.F.R. § 3.159(b).
Next, VA has a duty to assist a veteran in the development of
the claim. This duty includes assisting him or her in the
procurement of service treatment records and other pertinent
records, and providing an examination when necessary. See
38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2009).
In determining whether a medical examination be provided or
medical opinion obtained, there are four factors to consider:
(1) competent evidence of a current disability or persistent
or recurrent symptoms of a disability; (2) evidence
establishing an in-service event, injury, or disease, or
manifestations during the presumptive period; (3) an
indication that the disability or symptoms may be associated
with service; and (4) whether there otherwise is sufficient
competent medical evidence of record to make a decision on
the claim.
With respect to the third factor, the types of evidence that
"indicate" that a current disorder "may be associated"
with service include, but are not limited to, medical
evidence that suggests a nexus but is too equivocal or
lacking in specificity to support a decision on the merits,
or credible evidence of continuity of symptomatology such as
pain or other symptoms capable of lay observation. McLendon
v. Nicholson, 20 Vet. App. 79 (2006).
After a careful review of the file, the Board finds that all
necessary development has been accomplished, and therefore
appellate review may proceed without prejudice to the
Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993).
First, the RO has obtained VA outpatient treatment records.
Further, the Veteran submitted private treatment records, and
he was provided an opportunity to set forth his contentions
during a DRO hearing in June 2007.
Next, a specific VA medical examination was completed in
April 1972. Although a medical opinion pertinent to the
service connection claim for a bilateral ear disorder was not
obtained, the Board finds that a remand for a VA medical
opinion is not warranted.
Given the absence of in-service evidence of chronic
manifestations of this disorder, the absence of identified
symptomatology for many years after separation, and no
competent evidence of a nexus between service and his claim,
a remand for a VA examination would unduly delay resolution.
Therefore, the available records and medical evidence have
been obtained in order to make an adequate determination as
to this claim.
Significantly, neither the Veteran nor his representative has
identified, and the record does not otherwise indicate, any
additional existing evidence that is necessary for a fair
adjudication of the claim that has not been obtained. Hence,
no further notice or assistance is required to fulfill VA's
duty to assist in the development of the claim. Smith v.
Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed.
Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001);
see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).
ORDER
New and material evidence having been received, the
application to reopen a claim of entitlement to service
connection for a respiratory disorder, claimed as asthma, is
granted.
New and material evidence having been received, the
application to reopen a claim of entitlement to service
connection for a bilateral ear disorder, claimed as hearing
loss, is granted.
Service connection for a bilateral ear disorder, claimed as
hearing loss, is denied.
REMAND
Having reopened the claim of entitlement to service
connection for a respiratory disorder, the Board finds that a
remand is in order. First, VA's duty to assist includes a
duty to provide a medical examination or obtain a medical
opinion when it is deemed necessary to make a decision on the
claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R.
§ 3.159(c)(4) (2009).
Although the Veteran's July 2006 private physician appears to
suggest a relationship between the Veteran's asthma and
service in Korea, the opinion is not sufficient to grant
service connection. Specifically, the private physician did
not discuss the basis for the opinion, nor does it appear
that he had the claims file for review.
The Board finds the private medical opinion is no more than
an "indication" that the Veteran's respiratory disorder may
be associated with service, but that there is insufficient
competent evidence on file for the VA to make a decision on
the claim. To that end, the Board finds that a VA
examination is required under McLendon v. Nicholson, 20 Vet.
App. 79 (2006) to determine whether his respiratory disorder
is causally related to active service.
Accordingly, the case is REMANDED for the following actions:
(Please note, this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2007). Expedited
handling is requested.)
1. Obtain outpatient treatment records
from the VA Medical Center in San Juan
for the period from July 2008 to the
present.
2. Schedule the Veteran for an
examination to evaluate the relationship
between his current respiratory disorder
and active duty service. The examiner is
asked to provide an opinion as to whether
it is at least as likely than not (i.e.,
probability of 50 percent) that the
Veteran's respiratory disorder, is
causally related to service. Any opinion
offered should be accompanied by a clear
rationale consistent with the evidence of
record.
The claims file, including any other
statements received, must be reviewed in
conjunction with such the examination,
and the examiner must indicate that such
review occurred.
3. Upon completion of the above,
readjudicate the issue on appeal. If any
benefit sought on appeal remains denied,
the Veteran and his representative should
be furnished an appropriate supplemental
statement of the case and be provided an
opportunity to respond. Thereafter, the
case should be returned to the Board
The appellant has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky
v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).
______________________________________________
L. HOWELL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs